FSF Positioning To Sue Microsoft Over GPLv3?

mjasay writes "Groklaw notes that the Free Software Foundation has decried Microsoft's attempts to distance itself from its obligations to abide by GPL Version 3 (press release here). Citing Microsoft's earlier declaration that they are not bound by GPLv3, the Free Software Foundation declared, 'Microsoft cannot by any act of anticipatory repudiation divest itself of its obligation to respect others' copyrights.' The press release implies that the Free Software Foundation may sue Microsoft over the issue."

Comments

How is Microsoft bound by GPL3?

[I'm Don Giovanni]

Can someone explain how MS would be bound by GPL3? They make no GPL software.
The Novell deal was made prior to GPL3.
How does GPL3 relate to MS at all?

Re:How is Microsoft bound by GPL3?

[EveryNickIsTaken]

Sounds like FSF just wanted to get in the news. Or on slashdot, or whatever. Reading the press release, they don't really SAY much... other than "We hate you Microsoft, neener neener neener."

Re:How is Microsoft bound by GPL3?

[just_another_sean]

IIRC the GPL3 would apply to MS as soon as someone redeems a SUSE voucher that they received from MS. MS would argue that merely giving out the vouchers is not distribution but most people (the FSF included) see it differently.

I'm not sure if that holds true or not (IANAL, etc.) but it should be interesting to see how this plays out. MS is obviously at least slightly worried or they wouldn't have issued the PR in the first place.

Re:How is Microsoft bound by GPL3?

[mr_mischief]

The angle MS and Novell are taking is that Microsoft's vouchers apply to Novell's GPL v2 stuff. If Novell just happens to distribute GPL v3 stuff in place of that, then it's Novell distributing it of its own free will and not a procurement via Microsoft.

I say the FSF has a right to question that tactic. I'm just not sure where the courts will fall on it.

Re:How is Microsoft bound by GPL3?

[Anonymous Coward]

The Suse vouchers that MS handed out had no expiry date and nothing stating which version of Suse they were valid for.
GPLv3 states that if you give rights to certain users, you must extend those same rights to ALL users without exception.
If a single person uses a Suse/MS voucher to obtain software licensed under GPLv3, ALL users of that software are immune from lawsuits by MS.

Re:How is Microsoft bound by GPL3?

[stinerman]

I'm at a loss there too.

As we all know, the GPL relies on copyright for enforcement. If I distribute GPL'd software, and I do not accept the GPL, then I have committed a copyright violation as nothing but the GPL allows me to distribute the software.

To be sued for copyright infringement, I must have actually made copes of and distributed GPL'd software, not "conveyed" or "propagated" or any other such language. Unless Microsoft has actually redistributed (not caused someone else to distribute, like Novell*) GPLv3 software without abiding by its terms, they are off the hook for copyright violations. They'd only be on the hook for a contract violation.

Again as we all know Microsoft has not signed the GPLv3, so it is not a party to it and does not need to abide by it.

*Unless my understanding of copyright law is wrong, one must make copies of a work and/or distribute them to be on the hook for infringement. The FSF might have a contributory copyright infringement case, but that would be much harder to prove, AFAIK. Of course, I'm an armchair lawyer, so hopefully someone who actually has a law degree will clear this up.

Re:How is Microsoft bound by GPL3?

[EveryNickIsTaken]

MS is obviously at least slightly worried or they wouldn't have issued the PR in the first place. FSF issued the press release, not MS.

MS would argue that merely giving out the vouchers is not distribution but most people (the FSF included) see it differently. Sorry, but most people, (IANAL) including judges IMO, would not. If I buy a movie from blockbuster, and they give me a coupon for a free whopper from Burger King, would blockbuster be suddenly responsible for the conduct of the BK employees and the food service?

Re:How is Microsoft bound by GPL3?

[m0nkyman]

I'd say that because the distribution of the vouchers predates GPLV3, that MS has a leg to stand on here.

Re:How is Microsoft bound by GPL3?

[DragonWriter]

IIRC the GPL3 would apply to MS as soon as someone redeems a SUSE voucher that they received from MS.

This is inconsistent with the FSF's contention that the GPL is a copyright license but not a contract in which the licensee gives up pre-existing rights, since no rights under copyright are necessary to distribute the vouchers and therefore a pure license of the type the FSF claims the GPL is would be completely irrelevant.

That contention aside, even viewing the GPL as a contract (or, rather, a contract offer), the argument seems to fail since there is no evidence of agreement by Microsoft to be bound by the contract, and thus no contract formed that is binding on Microsoft in the first place.

Re:How is Microsoft bound by GPL3?

[Doctor-Optimal]

This was a reaction to a statement by MS. They would not have made that statement if they were not worried. And if MS had let this pass without a statement the slashtards would (still) be channeling Neil Patrick Harris and yelling "It's scared!". When you are an ideologue all evidence points to your favored conclusion.

Re:How is Microsoft bound by GPL3?

[Bruce Perens]

Well, the theory is that since Microsoft is paying Novell - and has a contract with them - to distribute copies of SuSE to customers who have coupons. The coupons are not just like paying with dollars, since the coupons have no real cash value and there is a contract that says what they are for. So Microsoft is a party to that distribution because it has essentially contracted for someone else to distribute software for them. If you contracted for someone else to distribute bootleg copies of Britneyz new hit, do you think you would have much chance of convincing the court you aren't a party to her label's copyright license or otherwise an infringer?

All of the software that gives "GPL 2 and any later version" as its license is now optionally under GPL3, and new versions of Samba, LIBC, etc., will be "GPL 3 and any later version" and will be included in SuSE. So, Microsoft is obligated under GPL3 if SuSE accepts one coupon for a distribution that contains "GPL3 and later" software. Possibly MS is obligated for "GPL2 and later" software, although that is less clear.

Microsoft has the right to tell SuSE to stop honoring coupons now and keep the money, and then Microsoft would have to refund anyone who had outstanding coupons and eat crow in public. If Microsoft does not do that, it's going to be difficult to show that they didn't accept the license, since they had a way to escape from doing so.

MS is obviously concerned, they would not be making noise if they were not. I suspect that they have lost their last chance to keep Free Software away from their patent portfolio by doing this. They gave up the chunk of rights that we would not have already had due to doctrine of laches, etc. And they will settle for that rather than go to court.

Bruce

Re:How is Microsoft bound by GPL3?

[pete-classic]

They make no GPL software.

I don't know who modded this up, but the question doesn't make any sense. People who make GPL software aren't bound by the GPL with regards to their own software.

The GPL applies to anyone who distributes covered software and doesn't own the copyrights.

-Peter

Re:How is Microsoft bound by GPL3?

[Aim Here]

Don't think 'copyright violation'. Think along the lines of estoppel.

The threat here isn't that the FSF sues Microsoft for a GPLv3 breach; the FSF is making clear that there's a defence to a patent infringement lawsuit, namely that Microsoft aided and abetted the distribution of software under GPLv3 terms. If Microsoft sues RedHat over some FSF code, Eben puts on his cape, leaps into the courtroom and shouts "Aha! But you helped everyone distribute that code. Under the GPL. And because of the intricacies of the voucher system, under GPLv3. And the patent provisions of GPLv3 make clear under what conditions this software is allowed to be distributed. Novell gave EVERYONE permission to use every patentable idea in this software, and by helping Novell do that, you gave everyone permission too"

I reckon that's roughly the scenario that the FSF is hinting at here. It's obviously not a straightforward 'you distributed our software' copyright lawsuit.

Re:How is Microsoft bound by GPL3?

[Bruce Perens]

Well, for analogy, consider that I contract with someone to distribute bootleg copies of a CD for me, in return for coupons. I then claim to the judge that I owe nothing to the record label, since the license of the CD was not a contract and did not compel me to give up my pre-existing funds. :-)

I don't think it's relevant that the GPL is a license rather than a contract, since MS has the right to tell Novell to stop honoring those coupons, and thus to stop joining Microsoft to the license.

Bruce

Re:How is Microsoft bound by GPL3?

[mhall119]

If I buy a movie from blockbuster, and they give me a coupon for a free whopper from Burger King, would blockbuster be suddenly responsible for the conduct of the BK employees and the food service? Good analogy, but I would take it one step further. If Burger King decided that the name "whopper" would from now on refer to a beer (perfectly legal), would Blockbuster then be required to have a liquor license? Would Burger King even be required to allow the coupon to be redeemed against the new "whopper" product instead of the old "whopper" product they made when the coupon was issued? I think in both cases the courts would rule no.

Re:How is Microsoft bound by GPL3?

[arth1]

All of the software that gives "GPL 2 and any later version" as its license is now optionally under GPL3, and new versions of Samba, LIBC, etc., will be "GPL 3 and any later version" and will be included in SuSE.

Of all people, I though you'd be careful to say GNU LIBC or glibc when you meant the GNU implementation only, cause plain libc is not subject to GPL -- there are implementations under various licenses.
(And even if you meant glibc, that's LGPL, and not GPL.)

Re:How is Microsoft bound by GPL3?

[HermMunster]

If Novell does not include any GPL v3 products in their SuSE and people then redeem them Microsoft is not bound. But if Novell does decide to include a GPL v3 product and someone redeems then the license applies to Microsoft (just as the GPL v2 would apply). Novell could refuse to accept the redeemed coupons in order to protect the agreement between themselves and Microsoft and then the redeemer could then go back to Microsoft and ask for a refund. This essentially freezes the SuSE product--and Linxpire and Xandros too. But to say that a product that is covered by the GPL v3 that becomes included in the SuSE products it does make at least Novell bound to the GPL v3. The question as to whether Microsoft knew the GPL could change (as it did from v1 to v2) and that Licenses often change (as their EULA states clearly that they are subject to change) would certainly play into whether Microsoft is really bound by the agreement even if it were not stated up front.

What some are trying to say is that Microsoft is not bound by the GPL v2 either. They are trying to say that only Novell is. What the FSF is saying is that Microsoft is as much bound by the GPL as anyone is. It would be completely wrong to allow for agreements between two parties for the purpose of allowing them the benefits of the software developed under the GPL without that company being bound by the terms of the GPL. That's what's wrong with the Novell-Microsfot agreement. That's why the GPL v3 was created. It was created to protect the developers to keep companies such as Microsoft from stealing their work.

If the agreement between Microsoft and Novell excluded any GPL V3 product as a possibility, well, that's one thing. But if they didn't include a clause or two regarding that in their agreement then certainly this is a matter for the courts. Either way, it would be a matter for the courts.

Certainly Microsoft has the right to cease selling the the vouchers (in the event that there is no clause (or two)).

Clearly it is an issue the courts could answer. I don't know the law in that regard but companies such as Microsoft have tried to enforce this sort of thing in their favor in the past. So, I think there are some pretty clear cases representing this position.

Really it is the responsibility of Microsoft to do more than declare they are not bound. They must, at least, attempt to recover the vouchers and then in turn get them back from Novell or work to ensure that Novell does not make them bound by the GPL v3 by intentionally including GPL v3 software in their distribution.

The GPL v3 is doing what it is supposed to do. It is keeping Microsoft from thwarting the purpose of the GPL to begin with, which is to protect the developers. To even attempt to thwart it is a knife in the back of anyone giving their resources to create a product they want others to enjoy for free.

I could personally care less about whether Microsoft's proprietary software becomes less popular (or any company's software for that matter). It isn't up to the people that are part of the FOSS to protect Microsoft's markets. If they choose to make something and give it away for free then that's their business. It is really sad when company owned by the "once richest man in the world" thwarts the intended purpose of a license to keep competition under their thumbs.

There is nothing in the world that says that free and open software is bad for anything, including the economy. I venture to say that in fact it is more beneficial to the economy because the money from the sale of the proprietary software generally go into small group of people's pockets and sits in bank accounts, etc. What happens when those that would have to pay for that software can use that money for something else (e.g., eduction, dental bills, clothes for their children, or repairs to their cars, etc), is certainly more beneficial to the economy.

Re:How is Microsoft bound by GPL3?

[notamisfit]

Which is why their patent attacks haven't addressed the toolchain or gcc but rather the Linux kernel, GNOME/KDE, and OO.o (ie, stuff they *DON'T* distribute).

Re:How is Microsoft bound by GPL3?

[Anonymous Coward]

OK, but what if I distribute vouchers to purchase legitimate copies of Britneyz new hit, and the distributor decides instead to distribute bootleg copies? Am I in violation of the copyright? I entered into a contract with my distributor in good faith. They changed the rules after the fact.

That is the wrong analogy - the decision to go GPLv3 was by the Samba authors, not by Novell.

It is MS's problem that they promised something, profited from it, but now they decided that they dont like the current price of fulfilling that promise. It's like contracting to provide technical support and terminating the support agreement once the customer files a critical bug. "We did not know it was going to be that expensive for us to fix that! The customer's bugreport increased the cost of the contract after we entered into the contract, so it is null and void!"

Claiming that they did not know that the GPLv3 was coming along is disingenious at best. It is like claiming that they did not know that by building in San Francisco they might be affected by earthquakes. MS could have contracted in a way to eliminate the "risks" from the GPLv3 but they apparently failed to cover all bases - and that was their own doing. With their size of a legal department they certainly cannot claim incompetent legal representation :-)

Even though MS stopped distributing new vouchers, fact is that MS profits from hundreds of millions of lines of GPL-ed SuSE code right now (which code was written by tens of thousands of authors and is worth billions of dollars or more), by selling Windows alongside the SuSE vouchers to customers, and they contracted Novell/SuSE to distribute that code with no time limit on the vouchers.

That means that MS profits from the vouchers here and now . (as customers rely on MS's promise that Novell would be willing to honor the vouchers, and those same customers are paying for MS's services as we speak, partly encouraged by the availability of the vouchers)

And the law is fortunately not on the side of companies that try to circumvent obligations put on them by copyright licenses. Judges also have a dim view on the concept of profiting from other people's works without their authorization.

The largest software company on Earth profited tens or hundreds of millions of dollars from code written by others for free, and they now claim that the license is null and void and that they want to preserve the right to threaten with patent-lawsuits, which threats both the GPLv2 and the GPLv3 explicitly forbids? They also claim that the Novell contract is null and void because they were unfairly out-foxed by a single pro-bono university law professor who made the patent language in the GPLv2 match the original intention of the GPL even more? Try to go before a jury with those kinds of arguments, I definitely want a front-row ticket for that show :-)

Re:How is Microsoft bound by GPL3?

[harlows_monkeys]

MS would argue that merely giving out the vouchers is not distribution but most people (the FSF included) see it differently

There are two problems with this. First, there is no support whatsoever in either copyright statute or case law for the notion that distributing vouchers to a copyrighted work is legally a distribution of that work. (And the very idea is weird. Would the FSF say that if I went to the theater and bought tickets for a movie, and then gave those tickets to someone else, I'm distributing the movie?).

Second, even if it were distribution, it would not obligate Microsoft to GPL, because it is a ditribution that is allowed by copyright law. Microsoft bought a given number of vouchers from SUSE, and they are redistribution those vouchers. (At least, this is what the early stories about the deal implied...anyone know for sure if this is correct?). Microsoft is not printing new vouchers, or modifying the vouchers--just doing a one-to-one passing on of the vouchers they received from SUSE. That puts them squarely under the first sale doctrine. For those not familiar with first sale, it basically says that if you legally obtain a copy of a copyrighted work, you can pass that on to someone else, via sale, rental, gift, etc., without needing the permission of the copyright holder. Once the copyright holder places a particular copy in the stream of commerce, it is beyond his control.

First sale is what makes used bookstores legal, for example, and also what makes loaning your books to your friends legal. I suspect that one of the reasons the deal between Microsoft and Novell was structured to use vouchers supplied by Novell was to make sure Microsoft would be covered by first sale when they used the vouchers.

Re:How is Microsoft bound by GPL3?

[DragonWriter]

Don't think 'copyright violation'. Think along the lines of estoppel.

Yeah, it doesn't work under those terms, either.

The threat here isn't that the FSF sues Microsoft for a GPLv3 breach; the FSF is making clear that there's a defence to a patent infringement lawsuit, namely that Microsoft aided and abetted the distribution of software under GPLv3 terms.

Except that, well, they didn't. They issued vouchers when SUSE was (as it still is) distributed under GPLv2 terms, under an agreement with Novell, with very specific limitations on where the patent guarantee applies that are inconsistent with the GPLv3 (which didn't, IIRC, exist at the time the agreement was made.)

And the patent provisions of GPLv3 make clear under what conditions this software is allowed to be distributed.

Yeah, they do. And, under the terms of the GPLv3, Novell is not permitted to distribute software under the GPLv3 with only the guarantees Microsoft has provided, which are not as broad as the GPLv3 requires. The result is not that Microsoft's guarantees would be legally treated as broader than they are if Novell changed the licensing on SUSE, the result is that (1) if Novell choose freely (because the software was GPLv2 or later and they wanted to use v3) to use the GPLv3, Novell may be liable to downstream redistributors and users not protected by Microsoft's guarantee for implicit or explicit misrepresentations, particularly if they induced the decision to spend money on SUSE, or (2) if Novell incorporated some else's GPLv3 software into SUSE and thus was compelled to distribute it only under the GPLv3, Novell would be prohibited from honoring the SUSE vouchers and would be liable to Microsoft for breach of contract and/or to the voucher holders as third-party beneficiaries, or, if they chose to distribute despite the terms of the GPLv3, would themselves be in violation of the GPLv3 and liable for copyright infringement.

Most likely, though, what it really means is that Novell doesn't move SUSE to GPLv3 until and unless the vouchers aren't a substantial issue and they are willing to absorb the costs associated with doing so, and if they want to put out a GPLv3 Linux product in the meantime, they do it under a different name, and don't make it eligible for the vouchers.

Re:How is Microsoft bound by GPL3?

[Bruce Perens]

OK, but what if I distribute vouchers to purchase legitimate copies of Britneyz new hit, and the distributor decides instead to distribute bootleg copies? Am I in violation of the copyright? I entered into a contract with my distributor in good faith. They changed the rules after the fact.

It seems to me that Novell can't possibly have guaranteed to Microsoft that it either party would continue to have the right to distribute under Microsoft's contract terms, or that the licenses on the software would stay the same. There are a great many third parties who are copyright holders of the distributed software and were not party to the deal. They can not arbitrarily terminate the licenses on old versions of software that are under the GPL, according to the GPL's own terms. But they don't owe Microsoft any obligation to keep their license the same on any subsequent versions, and Novell can't stick with old versions if they want their distribution to be marketable.

So, in analogy, if Britneyz label decided to change the terms on their license to prohibit distribution under the coupons, the distributor and you would not have any right to continue distribution. You would not be able to show in court any reasonable expectation that the terms would stay the same because the label would not be party to your deal at all.

Some of the copyright holders are disgruntled over the loophole around the patent terms in their licenses that Novell and Microsoft attempted to engineer, and would consider this move on Microsoft to be pay-back or fair-play.

Thanks

Bruce

Re:How is Microsoft bound by GPL3?

[Aim Here]

"Except that, well, they didn't. They issued vouchers when SUSE was (as it still is) distributed under GPLv2 terms, under an agreement with Novell, with very specific limitations on where the patent guarantee applies that are inconsistent with the GPLv3 (which didn't, IIRC, exist at the time the agreement was made.)"

Now there's two things here that give the FSF leverage. One is that Microsoft agreed that Novell should release software under a 'GPLv2 or later' license. The other is that the SuSE vouchers did NOT have an expiration date. Meaning if someone has one of those vouchers, they can wait until GPLv12 to cash it in. There's no way that Microsoft can plead ignorance of the 'GPLv2 or later' language in the code it was distributing, there's no way it can complain about the lack of the expiration date, since it clearly agreed to the voucher system, and Microsoft must surely have been aware that the GPLv3 was being drafted. How can Microsoft suddenly be surprised that it was going to help supply the world with GPLv3 software?

"ah, they do. And, under the terms of the GPLv3, Novell is not permitted to distribute software under the GPLv3 with only the guarantees Microsoft has provided, which are not as broad as the GPLv3 requires."

Except that Novell has confirmed that it's going to go ahead and distribute GPLv3 software anyway. If Alice comes along with a voucher, supplied to her by Microsoft, and gets GPLv3 software from SuSE, and then reads her GPL, happily offers that software to Bob, who gets sued by Microsoft for patent infringement, who is at fault? Bob isn't, he took his GPL at face value. Alice isn't, she took her GPL at face value AND Microsoft helped Alice get this software, with full knowledge that it was going to contain a GPL license. The answer is that both Novell and Microsoft are at fault. Microsoft can't sue Bob, because Microsoft helped Bob (via Alice) get his software with all the GPL guarantees and whatnot. And if Microsoft DOES have the right to sue, then Novell is guilty of copyright infringement for not providing a secure enough GPLv3 guarantee along with the code it supplied.

"Most likely, though, what it really means is that Novell doesn't move SUSE to GPLv3 until and unless the vouchers aren't a substantial issue"

Novell ARE distributing GPLv3 software. The FSF DOES believe the vouchers are a substantial issue, and made that clear as soon as they spotted that the SuSE vouchers had no expiration date. Your 'most likely' scenario is already in the bin.

Re:How is Microsoft bound by GPL3?

[nmx]

No, it doesn't work that way. If the copyright notice says "version 2 or later" it's up to the person who distributes the work to decide which version to distribute it under. That would be Microsoft. In that case they could just distribute it under GPLv2. However, if the notice said "version 3", then Microsoft *would* be bound by it, if they chose to distribute it.

Re:How is Microsoft bound by GPL3?

[Bruce Perens]

No, Bruce, there's no room for litigation here.

This isn't argument, it's just contradiction.

There is room for litigation concerning whether the terms of the GPL are enforceable, at least in California

That finding is not relevant to the GPL because JMRI used the Artistic License, which gives away just about all rights until it's like public domain with attribution - and that fact was important to the case. So, this is more relevant to BSD and Apache licenses than to the GPL, which very clearly does not give away all rights.

The finding did not say the license was unenforcible, but that it had to be enforced as a contract rather than through copyright law. This precludes treble damages and an initial prohibition on distribution before the trial starts, but still gives the copyright holder rights to enforce the license.

But anyway, this is not of precedent to any other case until it gets by some appeals courts, and IMO it would not get by them - knowledgable commentators believe the judge misread the law.

Bruce

Re:How is Microsoft bound by GPL3?

[volpe]

Bruce, I've been reading your posts for a long while now, and with all due respect, I think you're misinterpreting the "and any later version" verbiage. (And if it were anybody other than you, I wouldn't even have this twinge of doubt in my mind about that.) The idea is pretty darn clear: MICROSOFT wants to redistribute the software. MICROSOFT needs a license to do so in order to avoid copyright infringement. The copyright owner has granted to the public (and therefore to MICROSOFT in particular) a license to do so, under GPL2. The fact that the copyright holder has proclaimed in advance that they intend to ALSO release the software under GPL3 does not, and in fact *can* not, constitute a revocation of the existing GPL2 license to redistribute. Thus, MICROSOFT can continue to redistribute the software to someone else (the "Recipient") under the GPL2 license. Once the Recipient has received the software from Microsoft, anything the Recipient does with it is between him and the copyright holder. The copyright holder has released the software under GPL2 and GPL3. If the Recipient wishes to redistribute the software, he may decide whether the terms of GPL2 or GPL3 are preferable to him. His choice to do something with the copyright holder's software, under terms provided by the copyright holder, has no bearing on Microsoft and cannot be construed as imposing any ex-post-facto constraint on Microsoft.

IANAL, but I really think this is just common sense, isn't it?

Re:How is Microsoft bound by GPL3?

[WhiteWolf666]

(i.e. you distribute it in unmodified form - the law allows you to pass on any copyrighted work you currently possess without an explicit license from the copyright owner).

Pray tell;

Where did you get a copy of Linux without agreeing to the GPL? What gave you the right to acquire said copy?

Is it legal for me to distribute Windows without agreeing to Microsoft's license agreements? If, and only if, every "copy" I acquire is legally acquired.

It is _copyright infringement_ to distribute Linux without agreeing to the terms of the GPL. Period. Nothing gives you the right to generate copies, other than the GPL. Specifically:
Conveying under any other circumstances is permitted solely under
the conditions stated below. Sublicensing is not allowed; section 10
makes it unnecessary.

You cannot make copies of Windows without Microsoft's explicit permission. Anything else is considered piracy.

Similarly, you must gain the permission of "Linux" authors in order to make copies. Anything else is considered piracy; and the _only_ way to gain this permission is by agreeing to the terms of the GPL.

There is nothing that permits you owning, distributing, or modifying GPL'd software other than the GPL. You cannot acquire GPL'd software without agreeing to it; everything else is infringement.

What of that isn't clear? Luckily, you're not a lawyer.

Re:How is Microsoft bound by GPL3?

[Wordsmith]

And all it governs is distribution. The end-user doesn't need a license to USE the software - only to become a distributor himself.

Re:How is Microsoft bound by GPL3?

[sumdumass]

Maybe MS isn't worried and is just using this as an opportunity to pull the crazies out with all the conspiracies on how MS will be tricked into losing everything because of some future event concerning the GPLv3 at a time when Vista adoption is slower then expected and the OS is radically different enough that a switch to linux would be in the same cost scale as a switch to Vista.

Wow, what a run on sentence. Anyways, why people are frothing over the aspect of tricking MS into losing it's patent rights because of the GPL license, MS is sitting back going "Well, if you switch to linux, you have to put up with this possibilities. It is already costing us a fortune in legal fees". The results? A lot of companies who might be looking to move to a Non MS platform stop looking.

Re:How is Microsoft bound by GPL3?

[Phisbut]

The copyright notice is presented to the end user. The GPL version is the end-user's option.

Nope. The GPL is not a EULA. It's not a "use license", it's a "distribution license". Read up on the law. The GPL version is the distributor's choice. The copyright notice is there for whoever chooses to use the copy rights, not for whoever uses the copyrighted materials.

Re:How is Microsoft bound by GPL3?

[Kalriath]

And thank whatever deity the readers believe in that YOU are not a lawyer.

It is 100% legal for you to distribute MS Windows without agreeing to the EULA, provided that you did not need to make copies to do so (so therefore you simply transferred the physical product - remember, the physical media does not need a license, the license only becomes valid when you attempt to use the software within)

Where did I get a copy of Linux without agreeing to the GPL? Simple. I walked to my local computer store and bought a copy (around here you can get a Linux CD for $6 in the countries largest chain of computer stores) and/or bought a copy of PC World with Linux on the CD. In both cases, I did not need to agree to the GPL because the GPL expressly disclaims any binding for pure usage. And because I did not need to make copies, the GPL explicitly states that I am not bound by it.

Please do note that also means that I may choose to sell those copies onward, still without agreeing to the GPL!

Don't throw me that bullshit about conveyance. In a real court, those particular sections aren't valid anyway - the FSF does not have delegated authority to alter definitions created by common law, or to bind parties to a license when they do not take any action to invoke the requirement for a license under copyright law. Microsoft does not require a license under copyright law, because they are not distributing GNU+Linux. They are merely paying Novell for access to the software on your behalf so that you do not have to. Your argument is akin to binding a finance company to the GPL because they allowed you to get a machine with GNU+Linux on hire purchase - it doesn't happen.

You say that you cannot acquire GPL software without agreeing to the GPL, which is completely false. As well, the first paragraph of the GPL says that as long as I do not redistribute it it does not apply to me anyway!

Clarification

[DimGeo]

Microsoft said they are not distributing any GPLv3 software or code, so they are not bound by said code's license, namely the GPLv3. They never said they will not abide by the GPLv3 if they are bound by it by distributing any GPLv3 stuff.

Re:Clarification

[Bruce Perens]

Oh, you think Microsoft was not playing games when it cross licensed Novell's customers instead of Novell to avoid the patent terms of the GPL? They were just doing business, right? Well, this is payback.

Bruce

Re:Clarification

[samkass]

So does this mean MS is hoping to splinter FS development, into GPL 2 and 3?

The FOSS community doesn't need Microsoft for that one. The FSF managed it all on their own.

isn't it a forgone conclusion that everything will (some day) be GPL v3?

Definitely not. There are a lot of people, including Linus Torvalds, who consider GPLv2 a much preferable license to GPLv3. In addition, some of these developer did not sign away all their rights to FSF by putting "or later" into their license. So no, all that happened with GPLv3 is that there's now yet another FOSS license that will co-exist with GPLv2, BSD, Apache, and others indefinitely.

I am confused what this means for all those that signed on with MS?

It means nothing. I'm no fan of MS, but the FSF is blowing hot air here. There's no way any judge is going to make anything of the voucher situation with regards to a license that was released after the deal was made... and the FSF has a very good chance of weakening the GPL legally by trying these tricks of legal technicality.

So all in all, the FSF seems to be playing right into Microsoft's hands lately.

Confused

[jshriverWVU]

Wouldn't MS actually be using and distributing software using GPL'd code in order to be bound to it? If this is the case I hope the FSF goes after them, but if MS isn't using any code and says "we dont like it we wont use it" then I dont see the point of the case.

And in the red corner, weighing in at

[TheDarkener]

275lbs, wielding his "chair of Google", the solar-panel-for-a-sex-machine, Steve BAAAALLLMMEEERR!

And in the BLUE corner, weighing in at 65lbs, with his slippery-slope of a stomach, sliding down icy hilltops, the racer himself, TUX!

*ding ding*

Re:Cool

[janrinok]

Not quite right there. The FSF have not changed the license under which Novell distributes its software. It was issued under the GPL2 and remains under that license. Microsoft have not infringed upon GPL2. However, if a significant number of developers move to the new GPL3 license then Novell have to make a choice. Either accept the new license conditions or do not accept the new software that is being developed under GPL3. If they do the former then Microsoft could well be accused of infringing GPL3 because their vouchers are a form of distribution - that might not be the correct legal term but I believe that you understand what I'm claiming. If Novell don't accept the new license conditions with the new software then they cannot include it in whatever they are offering. If sufficient elements of the new software are changed by their developers to GPL3 then Novell could find themselves stuck with an out-of-date distribution, or be forced to fork and update many elements of Gnu/Linux themselves in order to keep it under GPL2.

It is by no means certain that your claim that it 'will fail in court' is correct. Many people who know far better than I seem to think that it will succeed.

Re:Cool

[cp.tar]

What GPL copyrights is MS impinging upon? MS made a deal with a company that was distributing software with a GPL license, and then the FSF changed the license in an attempt to force MS to give away it's patents. It was a sleazy move by the FSF, and will fail in court, and is harmful to the whole open source movement.

Well, the FSF didn't change the license radically - and it only affects two kinds of software: the software initially written under GPL 3 and the software including the GPL version x or any later.

The software which was licensed under GPL x or later was so licensed even before the GPL 3. And the possibility of license change was plainly stated.

Compare that to companies that reserve the right to drastically change their licensing at any time. Microsoft included.

Gross Speculation

[vthokie69]

This isn't really news. It's just gross speculation. It's more the FSF equivalent to the FUD that MS spreads regularly. I sincerely doubt that either MS or the FSF wants to get into a major legal fight. It's extremely expensive and does neither side much benefit. Microsoft is going to go out of its way to avoid distributing any GPL3 code. Likewise, I don't see Microsoft abusing its patent library to extract cash out of anyone. If history is any indication, they primarily use their patent stash as a defensive mechanism much like all the other big companies like Sun, IBM, etc.

All of this speculation is blown way out of proportion. The true threats patent-wise to both free software and Microsoft alike are the patent trolls that produce nothing and only receive revenue from patent royalties and litigation.

Legal Maneuvering

[saterdaies]

The issue is that Microsoft has given indemnities to customers of companies like Novell. Seeing that, the FSF decided "let's make it so that the GPL v3 means those indemnifications mean that M$ can never sue free software users even if they aren't Novell customers".

I guess I'm one of those ends don't justify the means people. M$ shouldn't be suing FOSS, but you can't create a new version of a license and retroactively apply it to M$. We'd all be yelling at the top of our lungs if MS retroactively altered their Windows XP license so that it, say, required to be renewed every year for a fee. And there are loopholes - how many agreements say things like "we can change this agreement without notifying users and continued use is considered agreement with the updated terms."

Let's fight for real progress rather than shady legal maneuvering - because, let's face it, the evil companies will always be better at it!

Hello Alice, welcome to Wonderland....

[hitmanWilly1337]

The MAFIAA getting sued for malicious prosecution, now the FSF (potentially) suing MS over GPL violations...I think I just saw a pig fly by the window. But seriously, how can this get any better?

Get a chill pill people

[nweaver]

Microsoft will be "exempt" from the GPLv3 simply because they will never distribute or pay others to distribute GPLv3 code: since the FSF foundation has made clear they believe that paying others counts as distribution, the Novell deal will not encompass any GPLv3 stuff.

So for all those who hope that Microsoft will somehow get caught with their hand in the GPL cookie-jar/trap, forget about it. They are already very careful, and GPLv3 makes them even more careful.

Rather, what the GPLv3 does is make a large amount of future open-source development unavailable to Apple. Apple, unlike Microsoft, ships a large amount of GPL based software: GCC, emacs, a lot of random utilities, etc.

And Apple's solution is to buy up the copyright when possible (CUPS), replace (I've heard talk about replacing gcc), and/or fork at the last GPLv2 version.

The GPLv3 is designed to be unpalitable to many companies: TiVo, Apple, Google, etc, and they will sooner forgoe anything released under GPLv3 than deal with the liscence. This is a feature of the GPLv3, not a bug.

But it is a feature that will only be noticed by its absence: large companies avoiding GPLv3 code except for internal use.

-Nicholas Weaver

Re:Get a chill pill people

[coryking]

But it is a feature that will only be noticed by its absence: large companies
avoiding GPLv3 code except for internal use. "internal use" usually means web applications. RMS already thinks such people violate the "spirit" of his license. Soon enough he'll be bitching about "Googleization" and you'll see something about it in GPLv4 (they already tried to do this in a draft GPLv3).

Sorry. The GPL party is over. Everybody but the zealots are now quietly gutting every drop of GPL from their application stack.

In the next few years I predict (read: hope) you'll see a BSD renaissance as all the companies and contractors who got burnt spend their time building up *BSD. Hopefully they'll discover what I already found - the two big BSD camps crank out a *much* friendlier, far more stable platform to develop on. Hell, both are *complete* operating systems. The userland tools, the manuals and the kernel all come from the same source tree. Good stuff.

So come on over and join the party. The water is nice and the people are friendly. Just don't invite any zealot losers. The day RMS starts trying to politicize FreeBSD is the day I switch professions...

Re:I smell hypocracy... yes, it's coming from /.

[vthokie69]

I have absolutely no problem with copyright holders enforcing their copyrights regardless of who it is. The problem I have is with the methods that the RIAA and MPAA have used in enforcing copyrights. For starters, the RIAA and the MPAA don't even hold the copyrights, their member organizations do. The actual copyright holders are farming out the dirty work to the RIAA and MPAA. Second, they have been using potentially illegal tactics (Computer Fraud and Abuse Act violations?) to obtain information. Third, they frequently end up suing or bullying people into settling regardless of guilt or innocence. They are effectively attacking regular folks who also happen to be their customers instead of focusing on the large operations that are wholesale distributing their media and profiting from it. For the small time file sharing, a simple cease and desist order would be sufficient to take care of the problem.

Re:Cool

[janrinok]

It could mean just that - although that is not seen as a likely option. Novell has already stated that it intends to include GPL3 software in future releases. But, if Novell do not want to be bound by GPL3 then they must only distribute software that is GPL2 or earlier. Which might mean that they have a lot more work maintaining software for which they previously relied upon other contributors to provide. Still early days......

Re:Stickin' IT to the Man

[uglydog]

My guess is when it isn't exactly offtopic, and not really flamebait, but you just don't like it.

Re:Followup

[bzipitidoo]

No need for a lawyer, just use common sense. Yeah, sense still works-- our legal system isn't yet that messed up. So let's run through the facts:

1. MS claims GNU/Linux violates 235 of their patents. MS refuses to reveal anything to substantiate these claims, knowing that every last one of their claims will probably be worked around or invalidated. (In any case, should never have allowed the patenting of software.) MS is also not saying whether they will sue.
2. MS cuts a deal with Novell about their Linux distribution. The main item of this deal is that MS promises not to sue Novell customers for any alleged violations of MS's patents. Complete details of this deal remain unknown to the public.
3. The FSF, which happened to be in the process of revising the GPL to deal with "Tivoization" and was therefore luckily in a good position to respond swiftly to this threat, does respond. They add language saying you can't promise not to sue some users of GPL software over patent violations. You can't discriminate among recipients. All or none get the protection.

It's pretty clear what MS could do had things gone according to their plan, but I'll spell it out. MS would be in position to collect protection money from every GNU/Linux user in the world. And it wouldn't be a one time payment either. Same thing SCO tried. Just like that, the entire free software world would no longer be free. Have to pay for MS's blessing to do anything. And you know, given that cost maybe Windows would be (or look like) a better deal. Plus, Windows would have a big advantage if development on GNU/Linux software slowed way down because developers constantly have to work out deals with MS, and check whether any changes have newly violated any of the MS patents that were blessed. Not saying MS would do such despicable things, but if you believe that, I've got this bridge in Brooklyn....

But we're safe. The FSF has defused this threat. The bullies are afraid to take these issues to court. No need to be worried about technical violations. The spirit of the GPL is most certainly violated by such schemes. Yes, even the spirit of GPL 2. Courts do look at intent when considering cases. But good to have it spelled out in GPL 3, to avoid confusion.

Jeez

[trifish]

From the press release made by the FSF:
Microsoft has said that it expects respect for its so-called "intellectual property"--a propaganda term designed to confuse patent law with copyright and other unrelated laws

To FSF: "intellectual property" is not a "propaganda term" and the term is not designed "to confuse patent law with copyright and other unrelated laws".

In standard English, the term "intellectual property" term collectively refers to any or all of the following:

- Copyrights
- Trademarks (or service mark)
- Patents

Sometimes also to:
- Trade secrets
- Trade names

I stopped reading the press release after reading that sentence...

Re:Cool

[SL Baur]

The only patents Microsoft would be giving away are among the mythical 235 patents they say Linux plus distro cover. Microsoft's patent portfolio is not threatened, only their ability to sling FUD at the open source community over alleged patent infringements. (And if some of those mythical 235 patents only apply to the Linux kernel, whether Microsoft is bound by the GPL v3 or not, they are not affected because the Linux kernel is GPL v2).

Clear now?

Re:Deals like this are bad and must be attacked

[CDarklock]

The GPLv3 is a steaming pile.

Nobody who writes anything worthwhile likes it.

The GPL basically means "if you use this body of code, whatever you contribute must be given out freely".

This is a great deal when what you contribute is of negligible value compared to the original codebase.

But when you look around and see a vast teeming community of ignorant retards who can't write decent software to save their lives, this deal sucks.

The internet isn't the elite anymore. It's a vast teeming community of ignorant retards. That may do wonders toward making RMS feel like some sort of deity, but it sure as hell doesn't do much for producing high-quality code. What ought to scare the FSF is not that people are mad about the GPLv3 - if nobody's mad about it, you're probably not accomplishing anything - but that an awful lot of the people who are mad about it are highly competent and productive developers. These are exactly the kind of people you want to keep in your community. If what you're doing is driving them away, you really need to step back and think about whether this crusade against Microsoft is worth it.

Of course, I work for the enemy, so don't listen to me. But you probably ought to listen to your most competent and productive developers.